The FMLA Blog

Interaction of FMLA and Genetic Information Nondiscrimination Act of 2008

On May 21, 2008, the President signed the Genetic Information Nondiscrimination Act of 2008 (GINA) into law.  The GINA makes it illegal for companies and insurers to discriminate against people based on their genetic information, such as the predisposition of people to develop breast cancer, sickle cell disease, or diabetes.  

Genetic information is defined as:

1. an employee’s genetic tests
2. the genetic tests of family members of an employee, or 
3. the manifestation of a disease or disorder in family members of an employee.

Family members include the employees, spouse, dependent children, and all blood relatives of the employee, spouse, or child. 

The law also makes it an unlawful employment practice for an employer to acquire genetic information regarding an employee or a family member of the employee, with certain exceptions. Notably, the law permits an employer to acquire family medical history information as part of the FMLA medical certification process, or similar requirements under state family and medical leave laws. An employee would not, therefore, be able to refuse to provide an FMLA medical certification based on the GINA. 

Once acquired, the GINA requires employers to maintain genetic or family medical information pursuant to the confidentiality provisions of the Americans with Disabilities Act. 

The GINA grants employees and individuals remedies similar to those provided under Title VII and similar nondiscrimination laws, i.e., compensatory and punitive damages.  It also provides that no person shall retaliate against an individual for opposing an act or practice made unlawful by GINA.

Comment:  To view the text of the law, see attached:   http://www.govtrack.us/congress/billtext.xpd?bill=h110-493     

  

     

Two-Year Gap Between Last Use of FMLA Leave And Current Request Insufficient to Break Linkage for Employee Notice Purposes

In Fritz v. Phillips Service Industries, Inc. No. 06-11149, 2008 U.S. Dist. LEXIS 38266 (E.D. Mich. May 12, 2008), the employee requested leave on May 2, 2005, due to right knee pain.  Frtiz called and reported that he was unable to work due to his "knee condition."  In 2003, PSI had granted Fritz FMLA leave to undergo surgery on his right knee.  PSI was also aware that Fritz was scheduled to undergo another surgery on his right knee on May 24, 2005. 

On these facts, the court found that PSI had clear notice that Fritz had a serious health condition related to his right knee sufficient to shift the burden of inquiry to the employer to determine whether his May 2, 2005, request may be covered by the FMLA.  PSI did not inquire further, but immediately fired Fritz.  The employer had argued, unsuccessfully, that it was unreasonable to conclude that PSI should have known that the two events, the 2003 FMLA qualifying surgery and the May 2-3, 2005, were related.  The court denied PSI's summary judgment motion.

Comment:  The adequacy of an employee's request for leave that may be FMLA-qualifying is judged in light of an employer's institutional memory of the employee's past FMLA usage.  Where an employee links their otherwise innocuous current request for leave with a previously recognized FMLA condition, the employee will have satisfied their obligation to reasonably apprise the employer that the leave may be FMLA-qualifying.  Such linkage may be established despite the passage of several years since the last time FMLA leave was used.                  

To comply with the FMLA, employers should ensure that FMLA decision-makers have ready access to information regarding an employee's past FMLA usage in order to determine if their is any linkage with a current leave request.  It is doubtful that compartmentalization of this information within an employer will defeat a claim that the employer, as opposed to any one supervisor, was not on notice of the prior, approved FMLA leave usage. 

Similarly, employer's should put systems in place so that institutional memory of an employee's past FMLA usage is not lost because a leave administrator or supervisor transfers to another position or leaves the company.   

Requirement that Health Care Provider Submit Medical Certification Directly to Employer Does Not Violate the FMLA

In Taylor v. Ameritech Services, Inc., No. 07-2166, 2008 U.S. App. LEXIS 9237 (7th Cir. April 29, 2008), the court found that the employer did not interfere with the employee's FMLA rights by requiring that the completed medical certification form be faxed or mailed by the health care provider directly to the employer, rather than permitting the employee to provide the certification.  The court noted that:

Nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures to prevent fraud.

The court reasoned that that an employee might "forge a letter from a doctor, or embellish it before forwarding it to the employer."

Comment: To perfect the right to leave, the employee requesting leave bears the responsibility to ensure that an employer receives a medical certification, if one is requested.  The FMLA does not, however, address the method of delivery of a medical certification from the health care provider to the employer. 

The FMLA permits an employer to require an employer to comply with the employer's usual and customary procedural requirements for requesting leave.  29 CFR 825.302(d).  According to the Seventh Circuit, those permissible procedural requirements include the requirement that a supporting medical certification be directly submitted to the employer by the health care provider. 

Direct submission of medical information from a health care provider to an employer gives rise to HIPPA issues.  Generally, HIPPA prohibits disclosure of medical information to an employer absent patient authorization.  However, an employee who exercised their HIPPA right and refused to authorize direct disclosure of medical information as required by employer policy would almost certainly loose FMLA protections.  The employee may also be subject to disciplinary action for violating such an employer policy.   

Employers concerned with fraud may want to consider implementing a reasonable policy requiring that any medical certification be submitted directly by the health care provider.

The Seventh Circuit covers Wisconsin, Illinois, and Indiana.   

New Jersey Enacts Paid Family Medical Leave

On May 2, 2008, New Jersey joined California and Washington to become the third state to require companies to offer paid family medical leave to employees. 

The family leave insurance law allows employees to take up to 6 weeks of paid leave a year beginning July 1, 2009.  The program is paid thorough payroll deductions costing employees about $33 a year each.  Employers are not required to pay into the program.  Payroll deductions begin on January 1, 2009. 

Under the program, employees may receive two-thirds of their salary, up to a maximum of $524 a week.  Employers can require employees to use at least 2 weeks of sick and vacation leave before taking paid leave under the program.      

The legislation allows an employee to take paid time off to bond with a newborn or newly adopted child.  It also allows an employee paid time off to care for a sick relative receiving inpatient care in a hospital, hospice, or residential medical care facility, or under the continuing supervision of a health care provider.

Employee's may take paid leave in one 6-week period per year, or during a maximum of 42 intermittent days a year.

The legislation is designed to run concurrently with the New Jersey Family Leave Act and the federal Family and Medical Leave Act, not consecutively.

Employees of businesses with 50 or less employees who take paid leave are not guaranteed the right to return to their job under the program. 

The law also imposes criminal penalties and fines for employees who fraudulently claim paid leave benefits.  Employers are notified and may contest an employee's claim to eligibility under the program.

Comment:  Historically, state family leave law has been a leading indicator for the direction of federal legislation. Every year there has been federal legislation introduced to require some paid family leave.  Given the current make-up of congress and depending on how the presidential election turns out, federal paid family medical leave legislation may not be far off.          

Violation of the FMLA Does Not Support Claim of Intentional Infliction of Emotional Distress

The denial of FMLA leave or the discharge of an employee for requesting leave is "not egregious enough conduct to be considered extreme and outrageous" to support an employee's claim of intentional infliction of emotional distress, at least not in the Seventh Circuit.  The court granted the employer's motion and dismissed the claim.   

Alcazar-Anselmo v. City of Chicago, No. 07 C 5246, 2008 U.S. Dist. LEXIS 32042 (N.D. Ill. April 18, 2008)

Comment:  Even though the tort claim was dismissed, the employee may still seek money damages permitted by the FMLA's own remedial scheme.  The Seventh Circuit covers Illinois, Indiana, and Wisconsin. 

Grant of Leave Was Illusory Where Employee Was Required to Perform Full Duties While on Intermittent FMLA Leave

In reversing the award of summary judgment to the employer, the Seventh Circuit in Lewis v. School District #70, No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008) cited as evidence of retaliation the School's expectation that Lewis complete all of the duties of her full-time bookkeeping position while she was working on a part-time basis while she used intermittent FMLA leave.  Because she did not meet that expectation, the School permanently removed her from her position.

The court found that a reasonable jury could find that the FMLA leave granted to Ms. Lewis was illusory. 

The School, the court noted, had numerous options consistent with the mandates of the FMLA that did not require Lewis to perform her full-time duties while working part-time.  The School could have: (1) shifted the work to other employees during the time Lewis was taking intermittent FMLA leave; (2) hired part-time help; or (3) transferred her to another position temporarily. 

By holding Lewis to the unrealistic expectation that she should accomplish satisfactorily all of her duties of the bookkeeper position during her period of FMLA-protected intermittent leave, a jury, the court concluded, could find that the School violated the FMLA when it decided to permanently remove her to another position.   

Comment:  An employee on intermittent FMLA leave is required to meet the reasonable expectations of his or her position while at work.  Unrealistic expectations of what an employee can accomplish during the intermittent or reduced leave schedule may be evidence of retaliation for exercising FMLA leave rights sufficient, at least, to defeat an employer's s motion for summary judgment.  Even if a jury ultimately decides in favor of the employer, the inability to secure summary judgment makes the case much more expensive for an employer. 

To ensure FMLA compliance, employers should set realistic performance expectations during an employee's use of FMLA leave on an intermittent or reduced leave schedule. 

   

Paid Week of "Love Leave" Proposed

Proposed legislation would grant workers the right to a week of paid leave for a "love vacation" to reduce, its sponsor said, the high divorce rate and "revive passion in a population whose workdays are growing longer."  During the seven days, "couples could devote themselves to eachother both at an erotic and emotional level and find their way back to the path of love in order to find the wellspring of love again."  The proposed legislation has 13 co-sponsors. 

Comment: American employers can breathe a sigh of relief as the legislation was proposed in Finland, where employees are already entitled to 25 paid days of vacation a year plus 10 paid public holidays.  Makes the FMLA look rather tame by comparison. 

You can view a news article on the issue at http://www.boingboing.net/2008/03/16/finnish-mp-proposes.html

Alter Medical Certification, Lose FMLA Protections

An employee who alters a medical certification form without the permission of the health care provider is not entitled to FMLA leave, regardless of whether the unaltered form would have supported FMLA coverage.  Such falsification is also independent grounds for disciplinary action.

In Smith v. The Hope School, No. 06-3244, 2008 U.S. Dist. LEXIS 29544 (C.D.Ill. April 10, 2008), the employee requested FMLA leave due to stress.  In response to the School's request, Smith secured a medical certification from her physician.  The doctor indicated that Smith suffered a serious health condition as a result of severe recurrent muscle tension headaches and  neck and arm pain as a result of work-related trauma. 

It is undisputed that Smith added the words "plus previous depression" to her doctor's description on the certification form.  She did not consult with her physician before adding this information.  Smith had never been diagnosed with depression.  She faxed the form to her employer. 

Believing that the medical certification had been altered, the School contacted Smith's doctor to check.  The School did not obtain Smith's consent before checking on the authenticity of the certification. The School confirmed that the FMLA paperwork had been altered.  The School next contacted a DOL representative, who advised that the School could deny Smith FMLA leave based on the alteration of the FMLA documentation.  That is what the School did.  The School subsequently terminated Smith for falsification of paperwork and failure to show up on three occasions.

Smith sued, alleging that the School improperly denied her FMLA leave and terminated her in retaliation for exercising her rights under the FMLA.  The School moved for summary judgment seeking to dismiss Smith's FMLA lawsuit.

Based on a review of the case law, the court found that falsification of a certification is grounds for denial of leave regardless of whether the unaltered form would have supported the employee's FMLA leave request.  The court also held that termination may be an appropriate response to the alteration of a certification form, even if the unaltered form would have supported leave. 

The court found that the School violated the FMLA by contacting Smith's doctor directly without first obtaining Smith's consent, as required by 29 CFR 825.307.  The violation, the court went on to find, was without a remedy because it did not interfere with, restrain or deny Smith's FMLA rights. 

The court reasoned that the School would have denied the leave anyway whether Smith granted such permission or not.  If permission was granted, the School would have received the same information it obtained through its unauthorized phone call: that the doctor did not certify that Smith previously suffered from depression.  If Smith refused permission, the School would have denied her FMLA leave request.

The court also reasoned that the School did not base its FMLA denial on the fact that her doctor did not diagnose Smith with depression; it based its denial, in part, on its belief that she falsified the certification form.

Because she falsified her medical certification, Smith, the court found, did not engage in protected activity.  As such, she could not make out a prima facie FMLA retaliation claim. 

Comment: Courts have had very little sympathy for employee's who alter FMLA medical documentation. The better practice is for the employee or covered family member to request that the health care provider make any changes on the existing form, or issue a brand new certification, before it is submitted.  At minimum, an employee should obtain the prior approval (preferably in writing) of his or her health care provider before submitting an altered FMLA medical certification. 

DOL Issues Temporary Mandatory FMLA Poster Addressing Military Family Leave Amendments

The U.S. Department of Labor (DOL) recently released a temporary FMLA poster addressing the recently enacted changes affecting leave for military families. It is meant as a temporary mandatory insert to be posted along side your current DOL FMLA poster.  In all likelihood, the DOL will not issue a final version of a combined FMLA poster at least until it publishes regulations to implement the military family leave amendments.

The one-page poster provides general information regarding the availability of (1) up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent, or next of kin servicemenber who suffered a serious illness or injury in military combat; and (2) up to 12 weeks of FMLA leave due to a "qualifying exigency" related to active military duty in support of a contingency operation (e.g., Afghanistan, Iraq). 

To obtain a copy of the new temporary FMLA poster, follow the attached link.  http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

Comment: DOL has not issued regulations implementing the newly added military family leave provisions of the FMLA. The regulations should be out in the next months. 

Employer Not Entitled to Diagnosis in FMLA Medical Certification

Lisa McDougal submitted a medical certification in support of her request for FMLA leave due to nausea and pain in her abdomen and back.  On the supporting WH-380 form, McDougal's doctor indicated that she suffered from a serious health condition involving incapacity of more than three days plus health care provider treatments.  In the medical facts section of the form, the doctor noted that McDougal suffered from abdominal pain, vomiting and lumbar pain.  The doctor also indicated that the McDougal was unable to perform work of any kind, the date the condition commenced, that the probable duration was unknown, and that the employee was subject to a regimen of continuing treatment under his supervision by prescription medication. 

The employer provisionally approved FMLA leave.  However, the employer noted that the certification was vague because it did not state the diagnosis with specific reasons for the incapacity.  The certification also needed to provided a better idea of how long it could last.  The employer provided a second certification to McDougal with instructions to have it completed by a specialist.  McDougal never returned the second certification form.  The employer subsequently terminated McDougal.  McDougal sued alleging interference and retaliation in violation of the FMLA.

In awarding partial summary judgment to MacDougal, the court found that it was improper for the employer to ask for a diagnosis.  The FMLA limits the information an employer is entitled to demand in a medical certification.  A medical diagnosis is not, the court found, required. 

The court also found that the employer did not have the right to require MacDougal to submit a second medical certification.  The employee reviewing the form for the employer conceded during depositions that she needed clarification of the health care condition.  By operation of DOL regulations (29 CFR 825.307), the court found that clarification assumes that the certification is complete.  When clarification is sought, a health care provider representing the employer may, with the employee's consent, contact the employee's health care provider for clarification purposes.  The employer did not do that in this case.  The regulations do not permit an employer to require an employee to submit a completely new certification to clarify ambiguities in a complete certification.

Because it was improper for the employer to request the second medical certification, it was, according to the court, equally improper to terminate the employee for her failure to provide it.

McDougal v. Altec Industries, Inc. No. 07-15-C, 2008 U.S. Dist. LEXIS 28765 (W.D. Ky. April 8, 2008)

Comment:  With the exception of pregnancy, an employer is not entitled to a medical diagnosis naming the employee's serious health condition.  An employer that insists on a medical diagnosis as part of the medical certification violates the FMLA. 

Employers are only entitled to certain information in support of an employee's request for FMLA leave.  Employers that condition the approval of FMLA leave on receipt of medical information that is not specifically permitted, like diagnosis, will run afoul of the law.  To be safe, employers should use the DOL-approved WH-380 form, and determine FMLA leave requests based only on the information the form allows you to request. 

Note that the court also found that an employer cannot insist that an employee submit an entirely new medical certification where the employer only seeks clarification of an otherwise complete certification.  Rather, where the clarification process is invoked, an employer is limited to having the employer's health care provider, with the employee's s permission, contact the employee's health care provider.